Defendant appeals his multiple convictions for promoting prostitution, ORS
167.012, compelling prostitution, ORS 167.017, and witness tampering, ORS
162.285. (1) In six assignments of error, defendant asserts that (1) the trial court erred
in failing to properly instruct the jury on each charge that 10 or more of its members must
agree on a specific factual incident involving a particular victim; (2) the court erred in
admitting uncharged misconduct evidence with respect to each of the charged offenses;
(3) the court erred in denying his motion for a judgment of acquittal with respect to the
witness tampering charge; (4) the court erred in calculating the length of defendant's post-prison supervision terms on his convictions for compelling prostitution; (2) (5) the court
committed plain error under Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L
Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d
435 (2000), by entering convictions for multiple crimes committed against the same
victim; and (6) the court committed plain error under Blakely and Apprendi by imposing
consecutive sentences for crimes involving the same victim.

The case was tried to a jury. In view of the nature of defendant's
assignments of error, we state the facts in the light most favorable to the state. State v.
King, 307 Or 332, 339, 768 P2d 391 (1989). The charges against defendant involved
three women who worked for defendant as prostitutes: Kelly, McAllister, and Walford.
All three women voluntarily went to work for defendant. However, each of the women
was afraid of defendant. Defendant told the women that he had a previous conviction for
manslaughter; defendant described the homicide as something he had gotten away with.
The women were afraid that defendant might hurt them and, in McAllister's case, hurt her
child. Officer Kosloske testified that pimps often make threats against their prostitutes'
children to secure the women's cooperation.

On separate occasions, defendant nearly drowned Kelly and Walford in cold
water-filled bathtubs because they did not make enough money. Defendant choked
McAllister for the same reason, and he threatened to harm her if she left him. Defendant
also assaulted the women for other reasons. On one occasion, he choked Kelly because
he believed that she had broken his rule against having contact with certain men. On
another occasion, defendant placed a pistol in Kelly's mouth and threatened to fire it. In
addition, he threatened to burn, or did burn, Walford's mouth with a cigarette and
threatened to kill her because he believed that she intended to report him to the
authorities. Yet another time, defendant got into a wrestling-type fight with Walford
because of her "attitude" in not giving him her money. During that episode, defendant
caused his dog to become agitated and bite Walford on the leg.

The three women testified to engaging in numerous acts of prostitution for
defendant over various lengths of time and involving many customers. The evidence
identified nine specific customers who had paid McAllister for sex: (1) Nguyen, a
manicurist who paid her $40 for sex; (2) a man known as "Chicken" who paid her $25 for
sex; (3) a man named Gray who was in town for business and paid her $200 for sex; (4) a
man whom McAllister met at a bar called "The Table"; (5) an older man with a "beer
belly" and receding hair who did not speak English well; (6) a tall, skinny man; (7) a man
in Beaverton whose wallet McAllister stole; (8) a man named Guzman from Hood River;
and (9) a man named Morales-Zapateco who paid McAllister $25 for sex. The evidence
showed that defendant encouraged McAllister's prostitution activities with her customers,
and McAllister testified that she always delivered the money she received from
prostitution activities to defendant.

Walford testified that defendant provided a place for her to live in his house
and that she regularly engaged in prostitution while living there. Every night Walford
turned her prostitution earnings over to defendant. Walford gave defendant most of the
money she earned, and he took care of her needs. Walford had so many customers that
she could not distinctly remember any of them.

The evidence also showed that defendant induced Kelly to engage in
prostitution, that she did engage in prostitution on numerous occasions, and that she
consistently gave defendant the money she made from that activity. Although Kelly
testified that she had many customers while working for defendant, the evidence
identified five customers in particular: Nguyen on 20 to 25 occasions, a man named
Pedro approximately 30 times, Morales-Zapateco about six times, the man whom
McAllister identified as "Chicken," and an elderly man. There also was evidence that, on
January 4, 2001, and January 11, 2001, defendant made telephone calls to Kelly in which
he sought to induce her not to testify against him regarding the prostitution charges.
Kelly was not, however, subpoenaed to attend any court hearing until January 17, 2001.

Because of the nature of defendant's arguments on appeal, we summarize in
detail the procedural history of the case. Defendant was charged by a 40-count
indictment. Counts 1 through 9, 33, and 35 charged him with promoting prostitution but
did not identify the prostitute involved. Counts 11 through 19 charged defendant with
promoting prostitution and identified McAllister as the victim. Count 32, also for
promoting prostitution, identified Walford as the victim. Count 34, charging promoting
prostitution, identified Kelly as the victim. Counts 21 through 29, charging defendant
with compelling prostitution, identified McAllister as the victim. Counts 36, 38, and 39--for compelling prostitution--identified Kelly as the victim. Counts 37 and 40, also
charging defendant with compelling prostitution, named Walford as the victim. Count
31--tampering with a witness--specified Kelly as the victim. Counts 1 through 30 alleged
that defendant committed the charged crimes on or between December 8 and December
15, 2000. Count 31 alleged a crime committed on or between January 1 and January 19,
2001. Counts 32, 33, 37, and 40 alleged crimes committed on or between February 1 and
June 1, 2000. Finally, Counts 34, 35, 36, 38, and 39 alleged crimes occurring on or
between March 1, 1999 and December 15, 2000.

At trial, the court granted defendant's motion for a judgment of acquittal on
two counts of promoting prostitution, counts 10 and 20, and one count of compelling
prostitution, Count 30. In its general instructions, the trial court told the jury:

"This being a criminal case tried to a twelve-person jury, ten or more
of your number must agree upon your verdict as to each separate charge.
When you have arrived at your verdict, the presiding juror will complete
and sign the verdict form."

The court later explained the elements of each of the crimes with which defendant was
charged. Near the end of its instructions, the court asked if the jurors had any questions.
The following colloquy then occurred between the court and a juror:

"JUROR: Each count is each person that they allegedly has sex
with; is that correct? I'm not understanding. The same counts, like 1
through 17, are the same verbiage, but why?

"THE COURT: Okay. When we are talking about the person
involved, count 1 through count 9, count 11 through 19, and count 21
through 29 all involve acts involving [McAllister]. The State has alleged
two different theories of promoting prostitution in count 1 through 9, and
then count 11 through 19.

"JUROR: But I'm saying, 1 through 9 is the same verbiage. Why
the same verbiage on each count 1 through 9?

"THE COURT: Because they're charged under the statute, under the
same -- the theories and elements are the same when we actually go through
what has to be proven beyond a reasonable doubt. So that's why we're
using, as you termed it, the same verbiage but, of course, the verbiage is
very important because the count has the elements that must be proven in
order to convict on that particular count.

"Please realize, what is being submitted to you is nine alleged
separate acts of intercourse. I shouldn't say intercourse; I should say
prostitution involving, in this particular case, [McAllister].

"Now, if you go through the elements, you will see, other than this
general theory involving unlawfully and knowingly receiving money with
intent to promote prostitution, unlawfully and knowingly receiving money,
other than a prostitute being compensated for personally rendered
prostitution services, pursuant to an agreement or understanding that the
money was derived from prostitution activity, that particular language
doesn't contain the name of the person. But if you look at the particular
dates, and realize that it's simply an alternative theory; under this you could
do that with regard to the other charges that involve the other two alleged
victims."

Defendant did not object to the quoted general instruction or to the court's
colloquy with the juror. When the court asked defendant's attorney whether he had any
exceptions to the instructions given, counsel stated, "No exceptions." Further, defendant
did not ask the court to instruct the jury that, to return a guilty verdict on a particular
count, 10 or more of its members must agree on a specific factual incident involving a
particular prostitute victim. The jury convicted defendant of the 37 counts submitted for
its decision, including 22 counts of promoting prostitution, 14 counts of compelling
prostitution, and one count of witness tampering.

At sentencing, the court stated that it was merging defendant's sentences for
his convictions on 11 counts of promoting prostitution (Counts 11 through 19, 32, and 34)
into the sentences on 11 counts of compelling prostitution (Counts 21 through 29, 36, and
37) as lesser included offenses. The court thus imposed sentences on 26 counts: 11
counts of promoting prostitution (Counts 1 through 9, 33, and 35), 14 counts of
compelling prostitution (Counts 21 through 29, and 36 through 40), and one count of
witness tampering (Count 31). The court imposed the following sentences on defendant's
convictions: Count 1, for promoting prostitution, a 40-month prison term with a three-year post-prison supervision term; Counts 2 through 9, 33, and 35, for promoting
prostitution, 45-month prison terms and three-year post-prison supervision terms; Counts
21 through 29 and 36 through 40, for compelling prostitution, 70-month prison terms and
10-year post-prison supervision terms minus time served on the conviction; and Count 31,
for witness tampering, a 30-month prison term and a two-year post-prison supervision
term. The court ordered that the prison terms on Counts 21, 22, 23, 36, 37, and 38, for
compelling prostitution, and the prison term on Count 31, for witness tampering, run
consecutively. The remaining sentences were imposed to run concurrently to those
sentences and each other. Defendant's total sentence was 450 months.

, 331 Or 455, 472, 17 P3d 1045
(2000), cert den, 534 US 833 (2001) (holding that, although the error was unpreserved,
the trial court's failure to provide an instruction on jury unanimity in an aggravated
murder case was error apparent on the face of the record).

The state initially responds that, under ORCP 59 H, the claimed error is not
reviewable. That rule provides, in part:

"Defendant's claim of error is clearly premised on a challenge to jury
instructions given by the trial court. The record demonstrates that
defendant raised no objection to the trial court's instructions and that he
never noted any exception after the jury was instructed. The plain language
of ORCP 59 H required defendant to complete both of those steps to make
his claim eligible for appellate review. He performed neither. To the
contrary, he affirmatively waived any objection to the instructions given by
the court. * * * As a consequence, although this court has jurisdiction over
defendant's claim, because he did not comply with ORCP 59 H * * * his
claim is not within the scope of this court's review, and this court
consequently cannot review it."

There was nothing wrong with the uniform instruction that the court gave,
as far as it went. In fact, defendant does not contend that the instruction was erroneous.
Rather, he complains that the trial court erred in failing to further instruct the jury that it
must reach the requisite degree of concurrence regarding a particular factual incident and
victim in order to convict him on any particular count. That notion is not captured in the
uniform instruction but, rather, is a further refinement of it. In other words, defendant
had no reason to object to the instruction that the court gave; instead, his argument on
appeal is that the instruction, even as expanded during the court's colloquy with the juror,
was incomplete. Accordingly, ORCP 59 H, which requires exceptions to instructions that
the trial court actually gave, does not preclude our review of defendant's first assignment
of error.

Of course, that does not mean that defendant's unpreserved claim that the
trial court erred in failing to give a further concurrence instruction regarding the
promoting and compelling prostitution charges is automatically reviewable. See Roop v.
Parker Northwest Paving Co., 194 Or App 219, 248-50, 94 P3d 885 (2004), rev den, 338
Or 374 (2005) (holding that ORCP 59 H does not obviate the need to preserve, by
requesting an instruction in the first instance, a claim that the trial court erred in failing to
give the instruction). Unpreserved instructional error cannot be reviewed on appeal
unless the error is plain, that is, apparent on the face of the record. See State v. Acremant,
338 Or 302, 330, 108 P3d 1139, cert den, ___ US ___ (2005) (using descriptors
interchangeably). The elements of plain error are (1) the error must be one of law, (2) the
legal point must be obvious, that is, not reasonably in dispute, and (3) to reach the error,
"[w]e need not go outside the record or choose between competing inferences to find
it[.]" State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990).

In addressing defendant's plain error argument, we initially note that what is
at issue under the statutes describing the offenses of promoting and compelling
prostitution, ORS 167.012 and ORS 167.017, is defendant's conduct, not the conduct of
the prostitute victims or their customers. With that caveat in mind, we briefly review the
Supreme Court's decisions that guide our analysis. As noted, in Lotches, the Supreme
Court addressed the jury unanimity requirement under Article I, section 11, in the
aggravated murder context. In that case, the state had charged the defendant with three
counts of aggravated murder of a single victim. Those counts were based on the murder
having been committed in the course of the crimes of, respectively, attempted first-degree
robbery, and attempted second-degree kidnapping, and in an effort to conceal the
defendant's identity as the perpetrator of attempted murder. The evidence presented at the
defendant's trial would have supported more than one charge of each of the underlying
crimes because more than one victim was involved in the defendant's commission of each
of the underlying crimes. Neither the indictment nor the jury instructions identified the
particular victim or attendant circumstances of any of the underlying crimes supporting
the three aggravated murder counts. The trial court also did not instruct the jury that it
had to agree on the same set of facts to convict the defendant of each count of aggravated
murder.

The Supreme Court began by examining whether the instructions were
adequate in light of State v. Boots, 308 Or 371, 780 P2d 725 (1989). In Boots, the state
had charged the defendant with aggravated murder based on two separate subsections of
the aggravated murder statute--that the defendant had committed the murder in the course
of robbery and that the defendant had committed the murder to conceal the identity of the
robbers. The trial court had instructed the jury that the law did not require it to agree
unanimously on either theory, if the jury unanimously agreed that the state had proved
one, the other, or a combination of the two alleged aggravating factors. On review, the
Supreme Court held that the instruction was erroneous because "[it] relieves the jury from
seriously confronting the question whether they agree that any factual requirement of
aggravated murder has been proved beyond a reasonable doubt, so long as each juror is
willing to pick one theory or another." Id. at 375. The court, however, explained that
"[w]e are not speaking here of factual details, such as whether a gun was a revolver or a
pistol and whether it was held in the right or the left hand. We deal with facts that the law
(or the indictment) has made essential to a crime." Id. at 379.

Applying Boots to the aggravated murder charges in Lotches, the court held
that, "because the aggravated murder instructions that were given did not either limit the
jury's consideration to a specified underlying felony or require jury unanimity concerning
a choice among alternate [underlying] felonies, each instruction carried the same danger
that this court had condemned in Boots." Lotches, 331 Or at 469. The court illustrated
the problem presented in that case:

"It is plain from the foregoing that the jury in the present case
properly could not have convicted defendant of aggravated murder, for
example, based on murder committed to conceal one's identity as the
perpetrator of attempted murder, if half the jurors thought that defendant
had attempted to murder Riley and half thought that he had attempted to
murder Edwards. * * * [T]he unanimity rule requires that the jury agree as
to 'just what defendant did' to bring himself within the purview of the
particular subsection of the aggravated murder statute under which he was
charged."

Id. at 468-69 (quoting Boots, 308 Or at 380).

The court also determined that, although the defendant had not raised the
error at trial, the error was apparent on the face of the record. The court concluded that
the first and third plain error requirements were satisfied because "the question of what
must be included in a jury instruction is a question of law, and what was or was not
included is determined readily by examining the instructions that were given." Lotches,
331 Or at 472. The court also concluded that the legal point was "obvious" because Boots
had established that a jury must be instructed on "the necessity of agreement on all
material elements of a charge in order to convict." Lotches, 331 Or at 472. The court
concluded that, because the factual distinctions between Lotches and Boots were not so
significant "that a court reasonably could doubt what its duties respecting jury instructions
would be[,]" the trial court's failure to provide an instruction on jury unanimity was error
apparent on the face of the record. Id.

The Supreme Court next considered whether the same type of instructional
error was error apparent on the face of the record in State v. Hale, 335 Or 612, 75 P3d
448 (2003), cert den, 541 US 942 (2004). In Hale, the state charged the defendant with
six counts of aggravated murder committed to conceal the commission and the identity of
the perpetrator of the crime of third-degree sexual abuse, and four counts of aggravated
murder committed to conceal the commission and the identity of the perpetrator of the
crime of murder. At trial, the state presented evidence that the defendant or his
codefendant (or both) could have committed the crime of third-degree sexual abuse
against one or more victims. Similarly, for the counts based on the underlying crime of
murder, there were three murder victims and two possible perpetrators of that crime. The
court concluded that

"because the instructions that the jury was given with respect to each of the
aggravated murder counts based on the crimes of third-degree sexual abuse
and murder did not either limit the jury's consideration to a specific instance
of third-degree sexual abuse or murder, committed by a particular
perpetrator against a particular victim, or require jury unanimity concerning
a choice among alternative scenarios, each instruction carried an
impermissible danger of jury confusion as to the crime underlying each
count."

Id. at 627. The court then concluded that it should address the error as "apparent on the
face of the record" for the same reasons stated in Lotches. Id. at 630.

Finally, in State v. Sparks, 336 Or 298, 83 P3d 304, cert den, 125 S Ct 219
(2004), the court addressed another variant of the Boots problem. With respect to three
counts of aggravated murder based on the underlying crime of first-degree sexual abuse,
the defendant in Sparks argued on appeal that the trial court should have instructed the
jury that it must unanimously agree on the same incident of first-degree sexual abuse to
find the defendant guilty of aggravated murder as charged in those counts. The defendant
made identical arguments with respect to those aggravated murder counts that were based
on the commission of the crimes of first-degree kidnapping, second-degree kidnapping,
first-degree attempted rape, and second-degree attempted rape. Id. at 312-13.

The defendant contended that the evidence presented at trial could have
supported more than one instance of each of the five underlying crimes. Specifically, he
argued that the state presented sufficient evidence to establish that each crime could have
occurred at either, or both, of two distinct locations: the defendant's bedroom, where he
first brought the victim, or a railroad embankment, where police found the victim's body.
Id. at 313. The defendant argued that, under those circumstances, there was a substantial
likelihood of jury confusion and, therefore, that the trial court was required to instruct the
jury that it must unanimously agree on the factual circumstances that constituted the
elements of each underlying crime to convict the defendant of a particular count of
aggravated murder based on that crime. The defendant did not object to the trial court's
failure to give such an instruction. However, relying on Lotches, he argued that the
Supreme Court should exercise its discretion to review the error as apparent on the face of
the record.

The court rejected the defendant's argument:

"In Lotches, there were multiple possible victims for each of the underlying
crimes. Similarly, in Hale, there were multiple possible victims and two
possible perpetrators of each of the underlying crimes. In both of those
cases, the jury was presented with multiple factual theories for each of the
underlying crimes. It is not reasonably in dispute that a jury's failure to
agree unanimously on either the victim or the perpetrator of the
[underlying] crime would violate the jury unanimity rule, because both
those facts are material elements of the underlying crimes.

"In this case, however, it is not 'obvious' that a jury's failure to agree
unanimously on the precise location where defendant may have perpetrated
the underlying crimes against the single victim would violate the jury
unanimity rule. Nothing about the crimes charged in this case demonstrates
that the precise location of the underlying crimes constitutes a material
element of those crimes on which the jury must agree unanimously. In fact,
the location of those crimes more logically constitutes a 'factual detail' that
does not require jury unanimity. Boots, 308 Or at 379. The line between
those facts that are essential to the crime and those that are merely factual
details may not always be clear. However, defendant does not explain why
the location of the underlying crimes constitutes a fact that the law makes
essential to those crimes, as Boots discussed, and we cannot agree, without
more, that defendant's legal proposition is 'obvious,' as this court applied
that standard in Hale and Lotches. Because we conclude that the specific
error alleged by defendant is not 'error apparent on the face of the record,'
we do not address whether the trial court erred in the manner that defendant
contends. SeeState v. Reyes-Camarena, 330 Or 431, 436, 7 P3d 522
(2000) (declining to address asserted error as apparent on face of record
because legal point raised was not obvious)."

All of the described counts stated that defendant committed the relevant
conduct "on or between December 8, 2000, and December 15, 2000." The indictment did
not describe the specific manner in which defendant committed any of those crimes.
However, the state asserts that "the evidence at trial clarified what those acts were and
who they involved." The state argues that the giving of the uniform jury instruction and
the trial court's additional colloquy with the jury quoted above confirmed that "nine
alleged separate acts of promoting or compelling prostitution involving * * * McAllister"
were before the jury. According to the state, those instructions also confirmed that
Counts 1 through 9 and 11 through 19 corresponded to two different theories of
promoting prostitution, and that all 27 counts pertained to those nine separate acts of
promoting and compelling prostitution. As the state sees it, the trial court told the jury "in
essence, that three counts pertained to each of the nine acts being submitted to them."
From this, the state concludes that "the jury instructions given by the trial court simply did
not involve the omissions at issue in Lotches."

Defendant argues in turn that, although the state adduced evidence that he
promoted and compelled acts of prostitution between McAllister and the nine customers
described above, the evidence showed that she engaged in acts of prostitution with other
customers as well. For example, McAllister testified that she would have sex with
"anywhere from six to ten to fifteen" men per night. She also testified that "most of the
time" she went to an apartment complex in Beaverton, where she and Kelly had sex with
"anywhere from three to more" men. Further, defendant notes that, although the trial
court stated in its colloquy with a juror that the evidence showed that McAllister had nine
separate customers, the court did not identify those customers as to particular counts.
Thus, defendant reasons that, as in Lotches and Hale, the jury was presented with multiple
factual theories for each of the charged offenses involving McAllister and no clear
instruction as to which counts related to which incidents. According to defendant, it
follows that the trial court plainly erred by failing to give the jury a further concurrence
instruction and the error was not harmless with respect to his convictions of those
offenses. See,e.g., Hale, 335 Or at 628-30 (analyzing asserted harmlessness of error in
failure to give a proper unanimity instruction by examining whether it is possible at
appellate stage of the proceeding to determine whether the jurors reached necessary
consensus on the victim, perpetrator, and attendant circumstances of the crimes charged).

As an initial matter, we observe that the state's theory of the case at trial and
on appeal has been that each compelling and promoting prostitution count corresponded
to the relevant prostitute's conduct with a specific customer. However, whether the state's
theory of the case actually tracks the elements of the charged offenses is debatable. That
is because the line between "material elements" of an offense and mere "factual details" is
not always a clear and distinctive one. That uncertainty is present here. See State v.
Williams, 119 Or App 129, 849 P2d 1155 (1993) (declining to review as plain error
question of whether promoting and compelling prostitution are continuing crimes so that,
when one person induces another to prostitution, the first person has committed only one
crime even though the other person thereafter commits many acts of prostitution).

Again, in Boots, the problem was that the state presented two theories of the
case--murder in furtherance of robbery and murder to conceal the identity of the
perpetrator of robbery--on which the trial court's instructions did not require the jury to
agree. 308 Or at 375. In Lotches, the problem was that, in submitting to the jury charges
of aggravated murder based on the underlying crimes of robbery, kidnapping, and
attempted murder, the trial court failed to distinguish among multiple victims of the
underlying crimes. 331 Or at 468-69. In Hale, where there were two perpetrators and
three victims, the trial court's instructions did not require the jury to agree on specific
instances of underlying "sexual abuse or murder, committed by a particular perpetrator
against a particular victim[.]" 335 Or at 627. In Sparks, by contrast, the indictment
charged the defendant with the aggravated murder of one victim in the course of
committing sexual abuse, kidnapping, and rape, with multiple counts of each, and the
state adduced evidence of multiple acts of each of the underlying crimes, not different
theories for the same acts of aggravated murder. 336 Or at 312-13. The court held that
the "location" of the underlying acts might not require jury unanimity, stating that the
"line between those facts that are essential to the crime and those that are merely factual
details may not always be clear." Id. at 317. Thus, the court concluded, the legal point
was not "obvious." Id.

The same analysis applies to the promoting prostitution convictions
involving McAllister. Again, in those counts, the state alleged two theories for each of
the nine customers--one theory of "receiving money" and a second theory of "inducing or
causing" McAllister to engage in prostitution. With respect to the "receives money"
convictions, there was evidence that McAllister regularly turned over the money to
defendant after performing acts of prostitution with each of her customers. It is at least
arguable that whether she turned money over after prostituting herself with the first
customer, as opposed to a subsequent customer, is merely a "factual detail." For the same
reason, with respect to the "induces or causes" convictions, it is also arguable that
whether defendant engaged in the conduct of inducing or causing McAllister to perform
acts of prostitution with each or any particular customer on a particular occasion is a
factual detail. Accordingly, the trial court's failure sua sponte to give a further
concurrence instruction to the jury was not error apparent on the face of the record with
regard to the counts involving McAllister.

We turn to the counts involving Walford. As discussed, Count 32
(promoting prostitution by encouraging) and Counts 37 and 40 (compelling prostitution)
identified Walford as the victim. Count 33 (promoting prostitution by receiving the
proceeds thereof) did not identify a particular victim, but the state asserts that it applied to
Walford. The state acknowledges that, because she had had so many customers while
working for defendant, Walford could not distinctly recall any of them. The state argues,
however, that, even though the trial court did not instruct the jury that Count 33 pertained
to Walford, the jury must have known that it did because the indictment alleged that
defendant had committed that offense between February and June 2000, the period during
which Walford testified that she worked for defendant. Even though there was evidence
that Kelly also worked for defendant during that period, the state argues that the jury must
have known that Count 33 pertained to Walford because it immediately followed Count
32, which specifically named Walford as the victim, and both counts alleged the same
date range.

We reject the state's argument pertaining to Count 33. There is nothing in
the court's instructions or the indictment that identified Walford as the victim in Count 33.
Nor is the proximity of that count to Count 32 in the indictment sufficient to vitiate the
risk of jury confusion. Kelly also worked for defendant during the date range alleged in
Count 33, and there was evidence that defendant promoted Kelly's prostitution activities
by receiving her proceeds during that period. Moreover, Count 34, which immediately
followed Count 33 in the indictment, named Kelly as the victim. In short, the court did
not adequately instruct the jury as to which victim was implicated in Count 33; therefore,
there was an impermissible danger of jury confusion as to the alleged conduct underlying
that count. Accordingly, the error, like the similar errors in Lotches and Hale, is not
reasonably in dispute.

As to the remaining counts expressly involving Walford, Counts 37 and 40,
the state argues that defendant's reliance on Lotches is misplaced. According to the state,
the principles described in Lotches apply only in cases where multiple underlying felonies
could form the basis for one or more aggravated murder convictions. The state urges that,
for cases such as this one, "the better analysis involves review of the statutes under which
[the] defendant was charged and the evidence regarding those charges." Here, the state
argues, because Walford testified about her activities collectively, no portion of the jury
rationally could have convicted defendant of certain activities while other members based
their decisions on other activities. With respect to the two charges of compelling
prostitution, the state asserts that there was evidence of only two incidents in which
defendant physically coerced Walford, one in the bathtub and the other involving the
wrestling-type altercation. It follows, the state urges, that the jury could not have been
confused as to which incidents were involved in those counts.

We initially reject the state's argument that the principles followed in
Lotches apply only to aggravated murder cases involving choices among multiple
alternative underlying felonies. No such logical restriction exists. As discussed, Article
I, section 11, not only requires jury unanimity in aggravated murder cases, it requires the
concurrence of at least 10 jurors to convict a defendant of any crime tried in the circuit
courts. For Article I, section 11, purposes, multiple alternative felonies underlying a
charge of aggravated murder are not different in effect from multiple alternative factual
theories underlying some other charged offense or multiple charges thereof. The risk of
confusion in reaching such concurrence applies equally to any crime that is pleaded in
multiple counts where a jury is inadequately instructed as to which factual theories and
evidence apply to which counts. See,e.g., Bogle v. Armenakis, 172 Or App 55, 18 P3d
390 (2001), adh'd to on recons, 184 Or App 326, 56 P3d 420 (2002), rev den, 335 Or 180
(2003) (applying the Lotches rule to multiple theories of kidnapping). That does not
necessarily mean, however, that defendant's convictions on the remaining counts
involving Walford must be reversed and remanded.

First, as discussed with respect to the counts involving McAllister, the only
determination for which concurrence might have been required was the identification for
each count of a factual incident in which Walford performed an act of prostitution with a
particular customer. However, the question whether that determination was a "factual
detail" or a "fact essential to the crime" is subject to reasonable dispute. SeeWilliams.
Accordingly, the asserted error is not apparent on the face of the record. Equally
significantly, as the state notes, there was evidence of only two incidents in which
defendant compelled Walford to commit acts of prostitution. Because only two counts of
that crime involving Walford were submitted to the jury, the court's error, if any, in
failing to give a further concurrence instruction to the jury was harmless with respect to
Counts 37 and 40. Accordingly, even assuming that the lack of a concurrence instruction
was error, we would decline to exercise our discretion to reach it. See State v. Gutierrez,
197 Or App 496, 106 P3d 670, adh'd to on recons as modified, 199 Or App 521, 112 P3d
433 (2005).

On the other hand, the failure to give a further concurrence instruction was
not plainly erroneous with respect to the three counts of compelling prostitution involving
Kelly. As with the compelling prostitution counts involving McAllister and Walford, the
only determination for which concurrence might have been required was the identification
for each count of a factual incident in which Kelly performed an act of prostitution with a
particular customer. However, again, the question whether that determination was a
"factual detail" or a "fact essential to the crime" is subject to reasonable dispute. See
Williams. Accordingly, the asserted error is not apparent on the face of the record.
Moreover, and in any event, as with Counts 37 and 40 involving Walford, Counts 36, 38,
and 39 matched the state's evidence of only three incidents in which defendant compelled
Kelly to engage in prostitution: (1) the near-drowning incident, (2) the choking incident,
and (3) the incident in which defendant placed a pistol in Kelly's mouth. Because only
three counts of that crime involving Kelly were submitted to the jury, the court's error, if
any, in failing to give a further concurrence instruction to the jury was harmless with
respect to Counts 36, 38, and 39, and we therefore would not exercise our discretion to
reach it.

To summarize our conclusions thus far: The trial court erred in failing to
give a further concurrence instruction with respect to Counts 33 and 35, for promoting
prostitution, and the error is apparent on the face of the record. The error, if any, in
failing to give such an instruction is not apparent on the face of the record as to the
remaining counts of promoting and compelling prostitution.

Our conclusion with respect to Counts 33 and 35 requires us to consider
whether, even though the instructional error is plain, we should exercise our discretion to
review it. The state reminds us that an appellate court should exercise its discretion to
consider such error only "with utmost caution" as review of plain error is "contrary to the
strong policies requiring preservation and raising of error." Ailes v. Portland Meadows,
Inc., 312 Or 376, 381-82, 823 P2d 956 (1991). The state argues that,

"if review is permitted for a defendant who remains silent in the face of a
statutory obligation to speak up and who even affirmatively represents to
the court that he has no objection, such a defendant is encouraged to gamble
on the jury's verdict and, if it is adverse, attack the trial court's action for the
first time on appeal, when it is too late for the trial judge to cure any
problem."

As discussed, one of the premises of the state's arguments is invalid; the "statutory
obligation to speak up" imposed by ORCP 59 H is inapplicable in this instance. The
state's second premise depends on the first. Although defendant's attorney told the trial
court that defendant had no exceptions to the instructions given, that statement did not
pertain to instructions that the court failed to give. In short, both of the state's premises
hinge on its view that defendant is not entitled to review because he violated ORCP 59 H.
Because that view is mistaken, the state's argument fails. Here, at least, defendant made a
jury concurrence argument on appeal. In Lotches, on the other hand, the Supreme Court
apparently noticed the unanimity problem itself for the first time on appeal and
nonetheless exercised its discretion to review and correct the error. Moreover, in Hale,
the court exercised its discretion to review the error even though the defendant there, as
was the case here, had neither made a motion to require the state to elect a specific
incident for each offense nor sought a curative unanimity instruction. Hale, 335 Or at
621, 629-30.

However, our determination whether to exercise our discretion to review
the error hinges on more than our rejection of the state's arguments concerning ORCP 59
H. In Ailes, the Supreme Court explained:

"[I]n deciding whether to exercise its discretion to consider an error of law
apparent on the face of the record, among the factors that a court may
consider are: the competing interests of the parties; the nature of the case;
the gravity of the error; the ends of justice in a particular case; how the error
came to the court's attention; and whether the policies behind the general
rule requiring preservation of error have been served in the case in another
way, i.e., whether the trial court was, in some manner, presented with both
sides of the issue and given an opportunity to correct any error. Those
factors do not comprise a necessary or complete checklist; they merely are
some of the permissible considerations."

312 Or at 382 n 6 (citations omitted). In this case, the most significant factors affecting
our exercise of discretion cut in different directions. On the one hand, defendant could
have avoided the entire problem either by making a request for a further concurrence
instruction or a motion requiring the state to elect a victim with respect to counts 33 and
35. He did neither. Moreover, the error arguably is not grave in terms of penalty.
Defendant received concurrent sentences on both Counts 33 and 35. On the other hand,
both convictions are for serious felonies that were not merged into other convictions. On
balance, we give the latter factor the most weight. Accordingly, we exercise our
discretion to correct the error by reversing defendant's convictions on Counts 33 and 35
and remanding them for a new trial.

To summarize our disposition of defendant's first assignment of error: The
trial court erred in failing to give a further concurrence instruction that identified a
particular prostitute victim with respect to Counts 33 and 35 for promoting prostitution.
The error was apparent on the face of the record, and we exercise our discretion to review
it. Lotches, 331 Or at 472. Accordingly, we reverse defendant's convictions on those
counts and remand them for a new trial. However, the trial court either did not plainly err
by failing to give a further concurrence instruction with respect to the remaining counts of
promoting and compelling prostitution, or the error, if any, was harmless and we therefore
decline to reach it.

In his third assignment of error, defendant argues that the trial court erred in
denying his motion for a judgment of acquittal on Count 31, charging him with tampering
with a witness. ORS 162.285(1)(b) provides that a person commits the crime of
tampering with a witness if the person "knowingly induces or attempts to induce a witness
to be absent from any official proceeding to which the witness has been legally
summoned." Count 31 alleged that, on or between January 1 and January 19, 2001,
defendant knowingly "induce[d] and attempt[ed] to induce [Kelly], a witness, to absent
herself from a legal proceeding to which said witness had been legally summoned[.]"

The state concedes that the evidence does not support defendant's
conviction on Count 31, and we agree. The evidence showed that defendant's efforts to
induce Kelly not to testify occurred during telephone conversations on January 4 and
January 11, 2001. However, Kelly had not been summoned to any official proceeding
when those conversations occurred. Because the state did not prove that element of the
offense, the trial court erred in denying defendant's motion for a judgment of acquittal on
Count 31.

In his fourth assignment of error, defendant contends that the trial court
erred, in sentencing him on Counts 36 through 40, by imposing post-prison supervision
terms of 10 years minus time served in prison. The court imposed a 70-month prison
term on each of the convictions for compelling prostitution under ORS 137.700(2)(b)(c).
The state concedes that the trial court was not authorized to impose the challenged post-prison supervision terms and that it erred in doing so. In light of our reversal of
defendant's conviction on Count 31, and reversal and remand of Counts 33 and 35, the
case must be remanded for resentencing of all counts. See State v. Rodvelt, 187 Or App
128, 66 P3d 577, rev den, 336 Or 17 (2003). Accordingly, the fourth assignment of error
is moot.

In two supplemental assignments of error, defendant contends that the trial
court erred in sentencing him by imposing multiple convictions and consecutive sentences
for crimes committed against the same victim. He argues that, under Blakely and
Apprendi, the state was required to plead the facts supporting those matters in the
indictment and to prove those facts to a jury. Defendant concedes that he did not preserve
those arguments, but he urges us to review them as plain error. Because each of
defendant's convictions will be resentenced on remand, those assignments of error also
are moot.

"(1) A person commits the crime of promoting prostitution
if, with intent to promote prostitution, the person knowingly:

"* * * * *

"(b) Induces or causes a person to engage in prostitution or
to remain in a place of prostitution; or

"(c) Receives or agrees to receive money or other property,
other than as a prostitute being compensated for personally
rendered prostitution services, pursuant to an agreement or
understanding that the money or other property is derived from a
prostitution activity[.]"

ORS 167.017 provides, in part:

"(1) A person commits the crime of compelling prostitution
if the person knowingly:

"(a) Uses force or intimidation to compel another to engage
in prostitution[.]"

ORS 162.285 provides, in part:

"(1) A person commits the crime of tampering with a
witness if:

"* * * * *

"(b) The person knowingly induces or attempts to induce a
witness to be absent from an official proceeding to which the
person has been legally summoned."

3. Article I, section 11, provides, in part, that "in the circuit court ten members of the
jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree
murder, which shall be found only by a unanimous verdict, and not otherwise[.]" Although the
parties describe the issue in this case as one of unanimity, that term is a misnomer in cases
involving felonies other than murder. The issue here, for purposes of Article I, section 11, is one
of concurrence of the required number of jurors, not unanimity.

4. Because, as explained below, we reverse defendant's conviction for witness
tampering on a different ground, we need not address that charge in our resolution of defendant's
first assignment of error.

"an uncomfortable tension sometimes exists between the principle
that a reviewing court is not permitted to review the merits of an
unpreserved claim * * * and the practical reality that a court may
have to do so to assess whether the error is an obvious one and not
reasonably in dispute. See also State v. Oatney, 335 Or 276, 294,
66 P3d 475 (2003)[, cert den, 540 US 1151 (2004)] ('There is no
reason to [consider whether an alleged error] is "error apparent on
the face of the record" without first determining whether it was
error at all.')."

8. Defendant does not challenge on appeal the denial of his motion for a judgment of
acquittal on the compelling and promoting prostitution charges, or in any other way call into
question the state's decision to attempt to prove those crimes based on the number and identity of
the customers with whom the victims engaged in acts of prostitution.

9. In some circumstances, generic testimony may be insufficient, as a matter of law,
to support a conviction on a specific act and therefore fail to satisfy the due process requirement
of proving guilt beyond a reasonable doubt. Jackson v. Virginia, 443 US 307, 99 S Ct 2781, 61
L Ed 2d 560 (1979).

10. One other count requires brief mention. As noted, Count 31 (witness tampering)
also named Kelly as the victim but, as discussed below, we reverse that conviction on other
grounds. Therefore, we do not separately discuss it here.

"Evidence of other crimes, wrongs or acts is not admissible
to prove the character of a person in order to show that the person
acted in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident."